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News Steve Kim Obtains a Favorable Verdict in a Challenging Workplace TBI Trial (NJ) January 6, 2025 < Back Share to: Defending complex cases often requires navigating a maze of facts, legal nuances, and emotional narratives. Recently, Steve Kim represented our client in a workplace injury case in New Jersey that tested the limits of what can be accomplished through preparation, teamwork, and a commitment to presenting the truth. The matter of Jose A. Fernandez Martinez v. Pokora Wieslaw d/b/a W J Construction involved a plaintiff alleging severe injuries sustained during two separate workplace incidents. The claims ranged from traumatic brain injuries to spinal disc herniations, with demands suggesting significant exposure. Adding complexity, our client, the property owner, was the sole remaining defendant after other parties defaulted. Our defense focused on highlighting the plaintiff’s comparative fault and exposing inconsistencies in his account of the events and the injuries alleged. Evidence showed that the plaintiff failed to adhere to basic safety protocols, such as wearing a hardhat despite his training. Through expert testimony and thorough cross-examination, we demonstrated significant gaps in the plaintiff’s version of events and raised serious questions about the severity and causation of the alleged injuries. Procedural victories during the trial further reinforced our position, enabling us to present a strong and cohesive defense. The jury composition, combined with the clarity of our arguments and the strength of our evidence, maintained a defense-friendly trajectory in a traditionally challenging venue. After a thorough presentation of evidence and arguments, the case concluded with a favorable defense outcome, with plaintiff's award against our client being less than 10% of plaintiff's last demand before trial. Previous Next Steve J. Kim Steve J. Kim Partner +1 212 267 1900 skim@wcmlaw.com Contact

News Preservation of Appellate Review – Is It Waived? July 21, 2023 < Back Share to: Dupree v. Younger, Case Number 22-210 (May 25, 2023) addresses the preservation of legal issues for appellate review. In Dupree, the U.S. Supreme Court found that a summary judgment motion “allows the district court to take first crack at the question that the appellate court will ultimately face: Was there sufficient evidence in the trial record to support the jury’s verdict?” The court also found that “[b]ecause the factual record developed at trial supersedes the record existing at the time of the summary judgment motion, it follows that a party must raise a sufficiency [of the evidence] claim in a post-trial motion in order to preserve it for appeal.” The court further found that a “repeat-motion requirement” would be an “empty exercise,” where the averse ruling is based on a purely legal issue because “a purely legal question is, by definition, one whose answer is independent of disputed facts” and, thus, “factual development at trial will not change the district court’s answer.” Applying this reasoning to the case at hand, the Dupree Court unanimously held that where an averse pretrial ruling is based on a purely legal issue, a litigant need not, to preserve the issue for appellate review, re-raise the issue at or after trial. The Take Away. Be careful! While Dupree eliminates the need to re-raise averse rulings on purely legal issues; to avoid waiver, and preserve appellate review of fact-based issues, one must re-raise the fact-based issue(s) at trial and by post-trial motion. Thanks to Charles "Chip" George for this post. Please contact Chip with any questions. Previous Next Contact

News Conclusory Allegations of Bad Faith Against Insurer Insufficient to Survive Motion to Dismiss (PA) January 8, 2021 < Back Share to: Recently, in Daniel Dietz v. Liberty Mutual Insurance Company, the Eastern District of Pennsylvania considered whether the factual averments in the plaintiff’s complaint were sufficient to overcome Liberty Mutual Insurance Company’s partial motion to dismiss Dietz’s bad faith claim pursuant to Federal Rule of Civil Procedure 12(b)(6). By way of brief background, Dietz was involved in a motor vehicle accident with a driver who was insured by Farmers’ Insurance Company. At the time of the accident, Dietz was insured under an automobile policy issued by Liberty. On behalf of Dietz, Liberty obtained a settlement; unfortunately, the settlement was insufficient to cover all of Dietz’s medical expenses from the accident. Accordingly, Dietz submitted an underinsured motorist claim (“UIM”) with Liberty, which Liberty ultimately denied. Subsequently, Liberty offered to settle the UIM claim; however, Dietz rejected the proposed settlement as he believed Liberty erroneously did not obtain an additional stacking waiver when Dietz added a fifth vehicle to his automobile policy. After Liberty denied Dietz’s request for a copy of Liberty’s underwriting file, Dietz commenced the instant action, alleging claims for a declaratory judgment, breach of contract and bad faith. In support of its motion to dismiss, Liberty argued Dietz failed to state a bad faith claim upon which relief can be granted. In consideration of 42 Pa.C.S. § 8371 through the lens of the Court’s well-established standard of review, the Court determined Dietz failed to plead a claim for bad faith as the complaint contained no factual content indicating Liberty lacked a reasonable basis for denying his claim and that Dietz failed to show it either knew or recklessly disregarded its lack of reasonable basis. In addition, the Court concluded Dietz’s complaint, as pleaded, asks the Court to infer Liberty’s motive in refusing to produce its underwriting file was to deceive Dietz. Further, the Court cited other reasons why Liberty could have refused to produce a copy of its underwriting file, such as the fact that underwriting files often contain confidential business information. As the Court held the complaint failed to make any real factual averments, the Court granted Liberty’s motion and dismissed Dietz’s claim for bad faith. Ultimately, this case is a reminder of impact motions to dismiss can have on litigation in federal courts, and the premium courts place on well-pled complaints. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Erupting Toilets In Mall Found To Be The Act of God February 15, 2011 < Back Share to: In Abarca v. Clark Shoes, et al., the plaintiff was the manager of a Coach store, located in the Queens Center Mall. In July of 2007, a large storm hit Queens, causing severe flooding within many of the mall's stores. The toilet in the Clark Shoes store, located above the Coach store, erupted, causing severe flooding that leaked down into the Coach store. The plaintiff sustained injuries after slipping on this puddle. The lower court dismissed the claims against the owner of the mall. The Second Department affirmed that decision, finding that the storm was an act of God and that the resulting damage was unforeseeable. Thanks to Georgia G. Stagias for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_00992.htm Previous Next Contact

News Reality or Wishful Thinking: Is the Admitted Market About to Get Hammered? February 15, 2011 < Back Share to: The softness of the current insurance market has impacted everyone. One specific way in which it has impacted the E&S market is that admitted carriers (to increase premium intake) have underwritten risks that usually reverted to the E&S market. Some professionals believe that the worm is about to turn as the admitted carriers flee the newly written risks because of bad loss ratios -- http://www.insurancejournal.com/news/national/2011/02/10/184165.htm. The question is -- when? And to that question, no-one knows the answer. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM Philadelphia Partner Becomes Treasurer of Philadelphia Association of Defense Counsel June 30, 2021 < Back Share to: On June 21, 2021, WCM Partner Colleen E. Hayes was elected to the position of Treasurer of the Philadelphia Association of Defense Counsel, one of the oldest local defense organizations in the country. Colleen is a partner in WCM’s Philadelphia office and serves clients in commercial coverage related matters. Colleen was also recently selected as a Pennsylvania Rising Star for 2021. She also is on the DRI’s Young Lawyers Steering Committee. Previous Next Contact

News Spiderman, Spiderman -- Does Whatever a Lawyer Can? February 14, 2011 < Back Share to: The artistic and technical problems of the new Spiderman musical are well-chronicled -- http://www.huffingtonpost.com/2011/02/09/spider-man-reviews_n_820640.html. And, it is certainly a good thing that NY's Labor Law does not apply to actors' falls from heights -- http://abcnews.go.com/Entertainment/wireStory?id=12446206. But, since the odds of some kind of lawsuit ultimately arising are, at least, decent, Saturday Night Live has decided to have some fun -- http://www.nbc.com/saturday-night-live/video/spider-man-lawsuit/1291746/. If only, there wasn't some truth to the absence of professional standards. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Shh! Police Telling A Preacher To Keep It Down Is Not A First Amendment Violation February 18, 2011 < Back Share to: In Costello v. City of Burlington, the US Court of Appeals for the Second Circuit examined whether a police officer violated a preacher’s First Amendment Rights when the officer told the preacher to lower his voice when preaching on at a pedestrian mall. The Preacher was shouting and yelling, and disrupting other pedestrians. When the preacher refused, the officer issued a written warning for violation of Burlington’s noise control ordinance. According to the officer, the preacher could be heard over 350 away. The Second Circuit upheld Burlington’s right to limit the preacher’s volume. The Court noted that Costello’s voice dominated the area, and impinged on the use of the neighborhood by others. Significantly, the office did not tell the preacher to stop speaking, but only to lower his voice. If you have any questions regarding this post, please contact David Tavella at dtavella@wcmlaw.com . http://pdf.wcmlaw.com/pdf/costello.pdf Previous Next Contact

News In NY, a Tender Requires Support. August 12, 2011 < Back Share to: In Admiral Ins. Co. v. State Farm Fire & Cas. Co., the plaintiff insurer sought a declaration that the defendant insurer was obligated to defend and indemnify plaintiff P&K Contracting in the underlying personal injury action. The relevant facts of that tender are as follows. In October 2002, an employee of Shahid Enterprises, a subcontractor retained by P&K, was injured when he fell from a ladder. In 2003, the employee commenced a lawsuit. On September 22, 2003, United Claims Service, as authorized representatives of the plaintiff, sent a tender letter to Shahid demanding defense and indemnification. On December 17, 2003, UCS sent Shahid a follow up letter with copies to State Farm, Shahid’s insurer. In the letter, UCS did not indicate when it first received notice of the incident or lawsuit. State Farm claimed it did not receive this letter until January 22, 2004, because the letter was forwarded to an inactive claims office. On February 5, 2004, State Farm wrote to UCS and P&K requesting a copy of the file since it had no information on the accident. On March 19, 2004, State Farm sent UCS, plaintiff, P&K, and Shahid a letter wherein it reserved its right to deny defense and indemnity based on late notice. By letter dated April 13, 2004—now 113 days after UCS’ December 17, 2003 follow up letter—State Farm disclaimed coverage based on P&K’s failure to give prompt notice. Both plaintiff and defendant moved for summary judgment and both motions were denied, as the Supreme Court found that triable issues of fact existed as to whether State Farm disclaimed coverage as soon as was reasonably possible. In affirming the trial court's decision, the First Department focused on the fact that the December 17, 2003 follow up letter did not provide State Farm with any information regarding when P&K received notice of the incident or suit, and thus did not make it “readily apparent” that State Farm had the right to disclaim coverage. In reaching that conclusion, the court noted its disapproval of the policy of disclaiming now and investigating later. The moral of the story is -- if you're pressing a tender, make sure you provide enough information for the tender to be analyzed. Otherwise, you're going to be fighting a long legal battle. Special thanks to Gabe Darwick for his contributions to this post. For more information about it, or WCM's coverage practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Criminal Penalties for "Tweeting" Jurors August 12, 2011 < Back Share to: We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge's instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against "any form of electronic or wireless communication." Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A "tweeting juror" in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post. Previous Next Contact

News "Wet Floor" Signs and Mats May Not Be Proof of Notice December 3, 2021 < Back Share to: In Snauffer v. 1177 Ave of the Americas LP, Plaintiff suffered personal injuries after slipping and falling on a wet floor in his office building. Defendant moved for and was granted summary judgment after claiming it had no actual or constructive notice of the dangerous condition. Plaintiff appealed, arguing that it was a rainy day, and that defendants had mats out and signs up in other portions of the building thus proving defendants had notice of the conditions. The First Department agreed with the trial court, finding that the signs and mats were out as a safety precaution and not in response to complaints about a dangerous condition where plaintiff fell. Moreover, the First Department discounted the affidavits of plaintiff’s co-worker and expert on the grounds that neither had stated the date which their observations were made. As such, the First Department affirmed unanimously. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08773.htm Previous Next Contact

News Pennsylvania Supreme Court Weighing Bad Faith (PA) November 27, 2019 < Back Share to: Back in April, we noted all eyes were on the PA Supreme Court to further clarify the bad faith standard with respect to insurance coverage in the lawsuit captioned: Berg v. Nationwide Mut. Ins. Co., Inc. On Thursday, November 21, oral arguments were finally held in this matter. During arguments, the PA Supreme Court was asked to consider whether the PA Superior Court abused its discretion by reweighing evidence relied upon by the trial court in its finding of bad faith on the part of an insurance carrier. By way of background, this lawsuit stems from a 1996 car accident involving Sharon Berg which led to well over a decade of litigation between Berg and her automobile insurer. The insurance company chose to send the vehicle for repairs rather than deem it totaled. Berg sued her insurer on the premise that the repairs were defective and the car was no longer crashworthy. One of the hotly contested issues became whether the insurer had, in bad faith, decided to repair the vehicle because it was half the cost of rendering it totaled, although the car was in fact totaled. A Berk’s County jury found almost entirely in favor of the insurer and only found it should pay $295 for violating the Pennsylvania Unfair Trade Practices and Consumer Protection Law. However, the trial judge found bad faith on the part of the insurer and added $18M in punitive damages and $3M in counsel fees to Berg’s verdict. Specifically, the trial judge cited to the insurer’s later decision to deem the car totaled, its failures to disclose information about the vehicle’s condition, abusing the discovery process, and its failure to negotiate in good faith. On appeal, the Superior Court found the evidence relied upon by the trial judge to be unconvincing and reversed the trial court’s verdict. Specifically, it found that there was no evidence that the insurer knew the vehicle was not safe to be put back on the road nor that it acted in bad faith, stating, “The trial court simply ignored a large body of evidence that rendered is finding unsupported.” In addition, the appellate court found bias on the part of the trial judge because of language in the judge’s opinion that appeared to condemn the insurance industry in broad terms. On Thursday, the PA Supreme heard oral arguments after granting Berg’s appeal. It will issue its decision on, among other things, whether the appellate court abused its discretion “by reweighing and disregarding clear and convincing evidence introduced in the trial court upon which the trial court relied to enter a finding of insurance bad faith.” Continue to stay tuned for the PA Supreme Court’s ruling and its impact on PA bad faith litigation. Thank you to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact